European Union (Withdrawal) Bill

Baroness Ludford Excerpts

Committee: 3rd sitting (Hansard): House of Lords
Wednesday 28th February 2018 Lords Chamber

[Baroness Taylor of Bolton]

I accept that, but the Minister is assuming that legislation is always very neatly compartmentalised in a way which would allow that. My fear is that there will be enabling parts of legislation that could be caught up because some subsection could be EU related.

[Baroness Ludford (LD)]

Could I just follow on from that by expressing a related concern? We know what the Government’s attitude is to the Charter of Fundamental Rights and we know that the Bill provides that there is no right of action on the basis of general principles of EU law. I am thinking aloud here, but the concern might be that even with only a strict and narrow interpretation of which bits of, say, the Equality Act are EU derived and therefore subject to all the consequences, including Clause 6, we might miss some of the context in which those narrow provisions should be interpreted if we were to remain in the EU and fully under the jurisdiction of the court.

[Lord Keen of Elie]

I am not sure I agree with that proposition. But of course, at the end of the day, pursuant to Clause 7, it will be necessary to bring forward regulations which address amendments that are required in regards to retained EU law. At that point of course, those regulations will be the subject of scrutiny to ensure that they are limited to those aspects which are EU-derived law and therefore EU retained law. I do not believe that that is necessarily a problem, but I hear what the noble Baroness has said. We will of course take into consideration any difficulties that could arise in that context.

I wish to add one further point that I meant to make at the outset in response to the noble Lord, Lord Adonis. He referred to me as the Advocate-General. I am not appearing here as a law officer, and nothing I say should be construed as law officer advice. I am appearing here as a Minister in respect of the Bill. I would not want there to be any misunderstanding in the light of his reference.

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[Lord Deben]

Does my noble and learned friend agree that my noble friend Lady McIntosh has raised an issue that probably should not be answered in this way, but provides a difficulty for the Government that would be overcome if they said, when they had agreed and supported a particular decision, that they would then carry it out in whatever way they thought was the most sensible? That means that we can go on discussing and not be left in some sort of oblivion.

[Baroness Ludford]

Before the noble and learned Lord answers that point, I add a further complication. Whether we agree to a directive or not, if it was adopted by qualified majority voting it would still be adopted with an obligation for the UK to implement it. That does not quite solve the issue. What is raised is surely a very valid issue. It may not strictly come within the definitions in the Bill, but there is still a legal obligation if a directive has been adopted at EU level, whether we agree to it or not.

[Lord Mackay of Clashfern]

The legal obligation would cease on Brexit day. That is the situation. Unless something has been implemented by that time it is not strictly part of our law. On deciding what is to happen in the future, as far as I am concerned, there is enough to decide at the moment, but nothing will harm the Government if they give some indication of what they would do with instruments that have been adopted but not yet implemented, although, at the date of Brexit, we were obliged to adopt them on some future date.

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[Lord Keen of Elie]

My Lords, I am obliged to all sides of the Committee for their contributions to this part of the debate, which began with an amendment concerning directives. I was not initially taken with the use of the word “fuzzy” by my noble friend Lord Deben but the term has begun to gain traction as the debate has continued. Let us try to be clear about one or two issues. The Bill seeks, for very clear reasons, to take a snapshot of EU law as it applies immediately before exit day. That is the cut-off point. Regulations emerging from the EU have direct effect on the domestic law of member states, so regulations that have taken direct effect by the exit date will be part of retained EU law. There is really no difficulty about that whatever.

[Baroness Ludford]

Nobody, I think, has questioned that. We are talking about directives.

[Lord Keen of Elie]

That is what we began talking about but the noble Baroness, Lady Hayter, for example, has referred to regulations. I will come on to address the point she made, but regulations have direct effect and if a regulation has direct effect by exit day it will form part of retained EU law. Directives have no direct effect in the domestic law of a member state. Directives have to be the subject of implementation and in that regard a transition period is given to member states for the implementation of a directive. There may be directives that have been adopted prior to the exit date which have a transitional period that will expire by the exit date specified in the Bill. In that event, the Government have indicated that they will seek to implement those directives that require implementation by a transitional date before the exit date. Therefore, they will become part of retained EU law because they will have been implemented in our domestic law.

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[Lord Keen of Elie]

No, that would not be covered, because in those circumstances there would have been no crystallisation of the direct right prior to the exit date. That is our position with regard to that point—but I am obliged to the noble and learned Lord for his acknowledgment that we are answering questions as they are posed. I was rather hoping that my noble and learned friend Lord Mackay of Clashfern might actually come forward to the Front Bench and allow me to retire to the second tier in order that this matter could be dealt with even more cogently than I am able to do.

I return for just a moment to the actual amendment. I have sought to emphasise—clearly, I hope—why the amendment is not appropriate in the present context. It would simply take away from one of the principal purposes of the Bill, which is to determine that there is an exit date—a cut-off point—when we will determine the scope of our own domestic law. I can quite understand the point made by the noble Baroness, Lady Young, about emerging provisions in the EU that have been worked on for many years and that would bring about appropriate and attractive standards for various aspects of our life in the United Kingdom—but, of course, it would be perfectly open to this Parliament to decide, in light of what has already been agreed in Europe, that it would be appropriate to have these standards in our domestic law, and we will have the means to do that. It is just that they will not form part of retained EU law for the purposes of this Bill.

On the noble Baroness’s amendment, I respectfully suggest that the mechanism that she has put forward—that you somehow retain the ECA for some purpose after it has been repealed—simply would not work. I appreciate that this is Committee, and we are actually looking at the underlying purpose of the proposed amendment and therefore have to consider whether we find that attractive and then look for a way to make it work. Nevertheless, it is appropriate to notice that the actual mechanism proposed in the amendment would not work.

I hope that I have addressed most of the points raised by noble Lords, but I agree with the observations made by the noble and learned Lord, Lord Brown, my noble and learned friend Lord Mackay and the noble Lord, Lord Pannick, with regard to what this Bill is attempting to achieve. It is attempting to achieve certainty as to the scope of our domestic law at exit date. That is its purpose, and we must keep that in mind.

[Baroness Ludford]

Will the Minister take another look at Clause 4(2)(b), which is a double negative? It talks about rights that are,

“not of a kind recognised”,

by the European Court or any UK court. When he was talking earlier about a directive that had direct effect, I think I recall him saying that it would have had to be recognised by a court decision as having direct effect—but the wording of Clause 4(2)(b) suggests a direct effect if it is “of a kind” that has been recognised by the European Court or a UK court. He might not be able to reply immediately but perhaps, when we come to Clause 4, he could look back at what he said today on directives with direct effect and be sure that there is a logical fitting together with Clause 4(2)(b).

[Lord Keen of Elie]

In my submission, it fits entirely with what is said in Clause 4(2)(b) and is consistent with that. It points to the necessity of there having been a recognition by the European Court or a court or tribunal in the United Kingdom for those purposes. It may be that the noble Baroness will want to take issue in due course with the use of the word “kind”, and no doubt we will come to that when we consider amendments to Clause 4.

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[Baroness Ludford]

Before the noble Baroness sits down, I invite her to agree with me that the fears that she raises are not fanciful. Indeed, the reason the Brexit Secretary had to make his speech was that we have on record numerous statements by Conservative politicians who are now Ministers expressing a desire to deregulate. I quoted one from the noble Lord, Lord Callanan, the other day. In 2012, Liam Fox said:

“To restore Britain’s competitiveness we must begin by deregulating the labour market. Political objections must be overridden. It is too difficult to hire and fire and too expensive to take on new employees. It is intellectually unsustainable to believe that workplace rights should remain untouchable”.


That is on the record, and I have lots of other quotes in a similar vein.

[Lord Falconer of Thoroton]

My Lords, three pretty clear themes are emerging around the House. First, you should be able to use the subordinate legislation to change EU retained law only where it is necessary to make EU retained law work. Secondly, it should affect only technical matters; and thirdly, it should not take away any individual’s rights. So there are three requirements: it must be necessary to make it work, affect only technical matters and not take away anybody’s rights. The argument for being allowed to go further has not been made anywhere, and I would be very interested to hear the Minister say why those three principles should not apply to every piece of subordinate legislation under the Act. If the Government want to go further, primary legislation should be used. Unless there is a case for going further, this Act should be appropriately limited.